In a previous blog entry, I discussed the issue of accessibility to amusement park rides. Well, it is back in the news again. This time from the District Court of New Jersey in an unpublished decision dated December 31, 2014, entitled Masci v. Six Flags Theme Park, Inc., 2014 U.S. Dist. LEXIS 178666 (D. NJ December 31, 2014). As is my usual practice, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

By the way, I want to thank Richard Hunt for explaining to me how I might use a picture in a blog entry. I did it!!!!!!!!

I
Facts

The plaintiff, then 14, attempted to ride a certain ride at Six Flags great adventure only to find out that he no longer fit the ridership requirements for the ride. Further, he found out that he was no longer permitted to ride on any of the rides at the park except for two of them due to new ridership requirements at Six Flags, which for the vast majority of the rides, required a person to have at least one fully formed arm and one fully formed leg. The changes to the ridership requirements were the result of what arose out of an accident occurring at another amusement park where a passenger missing both legs fell out of the roller coaster and died when the person was lifted out of his seat and the safety restraints at an amusement park outside of Buffalo, New York. As a result of that accident, Six Flags parks started to receive service bulletins from the manufacturers of certain rides, which include the manufacturer’s determination of what ridership restrictions were warranted to make the ride safe for all customers. The manufacturer of the nitro roller coaster, Superman ultimate flight roller coaster, the bizarro roller coaster, the Batman the ride roller coaster, and the Green Lantern roller coaster changed the ridership restrictions so as to allow a rider was one amputated foot or two amputated feet to ride providing they had the ability to hold on with two functioning hands and to allow a rider with one missing arm or hand to ride providing the rider had the ability to hold on with one functioning hand and brace himself or herself with two functioning legs. Six Flags then instituted an audit of ridership requirements on its rides and assembled an executive committee to review the ridership requirements currently in place at the various parks. The committee reviewed manufacturer guidelines, manufacturer service bulletins, engineering reports from the engineering team, standards developed by the American Society for testing and materials F24 committee on amusement rides and devices, and collective knowledge of the committee members. They also looked to manufacture requirement for similar rides in any amusement park and consulted with their engineering team to decide if the ridership requirements being proposed by the executive committee were appropriate from an engineering perspective. As a result of the audit, the executive committee changed ridership requirements for all the rides except for the flat nonrotating rides so that: 1) for rides which the manufacturer had recent service bulletins, the restrictions listed by that manufacturer would be the restrictions for the amusement park ride; and 2) for rides where the manufacturer was no longer in business or had not otherwise issued current guidelines, a rider had to possess at least one fully formed and functioning leg absent a prosthetic device and at least one fully formed and functioning arm absent a prosthetic device. They also changed the ridership requirements to further restrict the use of prosthetic devices on its rides due to the risk of a prosthetic device falling off during the ride. With respect to the plaintiff, the plaintiff had two full legs but was missing the upper sections of both feet. He wore lower limb prosthetic devices but could ambulate independently indoors and outdoors and could do some modest running and jumping activities. He was also missing his right arm above the elbow and had a short left forearm with four digits in the thumb. He did have some pinch ability with his left hand when he brought the fingers against his forearm for pinching or hooking objects but had relatively little mobility with his thumb. He also utilized a right arm prosthetic device. Six Flags defended on two different grounds. First, New Jersey law required them to follow and implement ridership restrictions mandated by ride manufacturers. Second, in the alternative, the ridership requirements were necessary for the safe operation of the rides and therefore, did not violate the ADA or the New Jersey Law against discrimination. Everybody moved for summary judgment and the court denied all motions.

II
Court’s Reasoning

1. Proof of ridership requirements mandated by the manufacturer, whom are the experts for the ride, can be relied upon by Six Flags as proof of a legitimate safety requirement under the ADA. The court, relying on the California case mentioned in the blog entry referenced above, felt that it was only logical that the ride manufacturers are in the best position to determine what ridership requirements are warranted and necessary to make the ride safe for all guests.

When you think about it, this is the same concept that I discussed in my blog entry talking about using negligence per se as a way to increase accessibility. However, in this case, the manufacturer’s ride restrictions are being used as the safety standard rather than the ADAAG.

2. The court specifically quoting from the California decision said that: defendants should not be required to second-guess the manufacturer’s safety requirements; if plaintiff believed the restrictions are overprotective he or she is free to initiate an action against the manufacturer; and that New Jersey law requires Six Flags to implement the ridership safety requirements of the manufacturer.

With respect to this particular reasoning, I get the idea that a court would not want to require an amusement park operator to second-guess the manufacturer’s safety requirements. I also get how the court could say that state law required amusement park operator to implement manufacturers safety restrictions on the amusement park rides. What I find a bit harder to deal with is the assertion that the manufacturer could be sued directly for violating the ADA if it was felt that the safety restrictions somehow violated the ADA. The reason I am struggling with this concept is that the ADA is an accessibility statute not a product accessibility statute (see this article of mine for example).

3. With respect to the rides that did not have specific manufacturer’s restriction, Six Flags failed to meet its burden that those ridership requirements were legitimate safety requirement per the ADA. In particular, they failed to provide any evidence supporting why those ridership requirements were established. The ridership requirements that were established had not been shown to be necessary for the safe operation of each ride. Further, the ridership requirements failed to establish what actual risks the safety requirements were based on.

4. A blanket approach to ridership requirements of rides with varying levels of risk creates the implication that those requirements were based upon mere speculation, stereotypes, or generalizations about individuals with disabilities rather than actual risk, all of which violate the ADA (citing to the Texas case discussed in a comment to the blog entry mentioned above).

5. The burden is on the amusement park operator to establish that its ridership requirements are for legitimate safety reasons rather than based upon the plaintiff being a person with a disability.

6. Even assuming that Six Flags ridership requirements were appropriate under the ADA, it simply wasn’t clear if the plaintiff nevertheless qualified for the rides under those ridership requirements. In particular, it wasn’t clear whether the plaintiff had a functioning arm to qualify for the vast majority of the rides since the medical report submitted by the defendant only described the plaintiff’s ability to pinch and did not mention the extent to which the plaintiff could grip with his left hand.

7. The ADA requires that an individualized assessment must be made concerning whether a guest actually meets the safety requirements of a ride. In other words, Six Flags should have an employee on hand who could determine or otherwise assess if a guest meets the ridership requirements for the ride in question. That is, if you are going to create eligibility criteria, it logically follows that it includes the right to ask if an individual meets the criteria. The record was unclear whether the plaintiff was tested to see if he met the safety requirements of the various rides. Rather, it seems that the plaintiff was prevented from being on the ride based on the appearance of a disability rather than on his actual failure to meet the ridership requirements.

I get what the court is saying here too. However, it is interesting that with respect to the employee that Six Flags should use to make the assessment whether a person with a disability is qualified to go on the ride, the language the court uses is, “assumedly the ride operator.” If you have been to an amusement park, you know the ride operators are generally teenagers and certainly not people qualified to assess a person’s medical condition so as to determine whether they could safely be on a particular ride. It seems to me that you would almost need a medical professional, such as a doctor, to make that assessment. Then, what if the Doctor gets it wrong? Would the doctor and/or the amusement park, under apparent authority, somehow find a way to be protected from liability in that event?

8. If Six Flags did discriminate against the plaintiff based upon his appearance of disability, rather than any legitimate safety concerns, the safety defenses wind up being irrelevant.

III
Takeaways:

1. If you are an amusement park operator, this case and the California case allow you to rely on the manufacturer’s restrictions for the ride.

2. If you do not have manufacturer restrictions for the ride, an individual analysis of the person with a disability must be performed to see if that person could ride the ride safely. The problem here is just what employee is going to have the ability to determine that. It is hard to believe that it could be a teenager with no medical training.

3. Regardless of whether manufacturer’s restrictions exist, each ride is going to need essential eligibility requirements. Those requirements need to be based upon legitimate safety concerns. The system that Six Flags set up to figure that out simply wasn’t good enough. This decision requires an amusement park operators to first figure out the very nature of the particular ride. Then, have scientific experts and medical experts get together to figure out just what physical capabilities a person needs to be able to safely perform the ride. It probably wouldn’t hurt to have a statistical person as well to number crunch the probabilities based upon the various physical characteristics that the experts come up with.

4. I still don’t understand how the manufacturer can be sued for their product being inaccessible as the manufacturer would not be an employer, governmental entity, or a place of public accommodation with respect to riding the ride.

5. Amusement park operators need to remember that the burden is on them with respect to establishing that the ridership requirements are for legitimate safety reasons.

6. If states have not already done so, look for each one to put in place a law saying that amusement park operators must comply with manufacturer recommendations with respect to ridership requirements.

7. If you are plaintiff, this case gives you the ability to allege both actual disability and regarded as having a disability.

Erik Beard, an attorney with the law firm of Wiggin and Dana and who has a blog on legal issues affecting amusement parks , has been talking for some time about a case out of the central district of California that squarely presents the issue of whether amusement park rides must be accessible to persons with disabilities. That case is Castelan v. Universal Studios Inc. out of the central district of California. Erik graciously shared with me the summary judgment decision in favor of Universal Studios Inc., which was rendered by the court, Judge O’Connell, on January 10, 2014. Erik does a fabulous job in his blog of talking about this case and analyzing it, but I thought I would offer my own perspective.

The case involved two plaintiffs with disabilities. One of the plaintiffs has no arms or hands while the other plaintiff has no legs. Universal Studios Inc. is the owner and operator of a major amusement park, whose attractions, among others, includes roller coasters. One of the roller coasters, “the mummy,” requires that a person must have a minimum of one functioning arm and hand and at least one leg. The plaintiffs were precluded from riding that particular roller coaster and believing they were wrongfully discriminated against on the basis of disability, they filed suit.

In granting the motion for summary judgment on behalf of Universal Studios Inc., the court reasoned as follows:

1. § 3195.3 of the California Code of Regulations requires the owner and operator of a permanent amusement park ride to maintain procedures for implementing patron safety measures necessary to ensure the operation of the ride in a manner safe for everybody. Those safety measures according to that regulation, must at a minimum implement all specific manufacturer recommendations. The restrictions for the mummy roller coaster issued by the manufacturer includes that a rider must have one functioning arm/hand and be capable of grasping handle points and maintaining safe posture. Those restrictions also include that the rider have at least one leg that can be placed behind the shin pad and at least one foot placed flat on the floor.

2. Interestingly enough, the court noted in a footnote that the manufacturer restriction didn’t actually say that a rider must have at least one leg and foot. That said, the court believed that the manufacturer restriction required it implicitly because the manufacturer’s restriction required that guests must place their leg or legs behind the shin pad and where possible place his or her feet flat on the floor. The manufacturer restriction also said that it would be unacceptable to have a cast on the foot preventing the foot from getting under the shin pad.

3. Very importantly, the court noted that the issues before it had evolved over time. The latest evolution, which was before the court, was that plaintiffs were contending that the defendant violated by the ADA by failing to design a ride without rider eligibility criteria that excludes patrons with disabilities. That is, did the defendant discriminate against persons with disabilities in the ride, design, alteration and procurement process, which occurs way before the operations manual for the ride is even put together by the manufacturer.

To my mind, placing the case in this way was a critical strategic decision, and one which backfired on the plaintiffs. That is, it one thing to say that title III prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. It is quite another to say that the ride itself must be accessible to persons with disabilities.

4. California law requires enforcement of the manufacturer’s recommendation.

5. Citing to Weyer v. 20th Century Fox Film Corp. 198 F.3d 1104 (9th Cir. 2000), a case that I discussed in my book, the court said that the ADA does not require the provisions of different goods or services, rather it requires the nondiscriminatory enjoyment of the services that are provided.

That is true. However, it is hard for me to understand how a person could enjoy the full and equal enjoyment of the goods, services, facilities, privileges, advantages, of an amusement park unless the ride was accessible. But again, the critical piece is that the plaintiff focused on ride accessibility and not on the full and equal enjoyment of the amusement park.

6. While title III does not govern the goods and services that a place of public accommodation offers, it does govern how the place of public accommodation provides them. Accordingly, Universal Studios was under the obligation to ensure that the goods, services, and roller coasters are physically accessible to persons with disabilities even if those persons were not able to actually ride the ride itself due to the ride’s design and safety requirements.

7. The court also went on to say that the Code of Federal Regulations implementing the ADA allows for an amusement park to exclude persons with disabilities due to safety concerns. In particular, the court cited 28 C.F.R. § 36.301(a)-(b), which states that a public accommodation may impose legitimate safety requirements that are necessary for safe operation. The court also cited to the Federal Register (the Court in the opinion on Pacer uses a CFR reference here but in actuality it should be a federal register cite), for talking about two examples DOJ gives for what might be safety requirements (height requirements for certain amusement park rides and a swimming requirement with respect to recreational rafting expeditions).

All true enough. However, there is a second sentence of 28 CFR § 36.301(b) that is not cited by the court. In particular, that section says, “safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.” That sentence seems very analogous to the concept of “direct threat,” which is found in title II of the ADA at 42 U.S.C. § 12182(b)(3) and in title I of the ADA at 42 U.S.C. § 12111 (3). “Direct threat,” is not a concept that you see in title III of the ADA , but nevertheless the second sentence of 28 C.F.R. § 36.301(b) arguably seems to be referring to Chevron, U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002), where the court said that any direct threat defense has to be based on a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. Of course, if this is what the Department of Justice is referring to, it would place an impossible burden on the operator of the amusement park’s as the park’s personnel would have no way of evaluating whether the particular person with a disability was indeed a direct threat. I suppose it is theoretically possible that some kind of advanced system could be set up where the amusement park would evaluate each person with a disability on an individual basis in advance. However, that would put a tremendous burden on the amusement park operator and it would also eliminate any spontaneity by the person with a disability. Nevertheless, it does seem to suggest that any ride restrictions need to be based upon actual risks, however that might be determined.

8. The court said that they were unwilling to second-guess the manufacturer’s safety requirements and that California law requires enforcement of the manufacturer’s safety requirements. The problem with this is that if there is an actual conflict between federal law and state law, federal law prevails. Even so, in this situation, it is extremely complicated. First, there is the issue of whether the federal regulation talking about actual risks is clearly consistent with the ADA (it well could be). Second, there may not even be a conflict. It is not necessarily a conflict for the federal regulation to insist upon actual risks and for California law to insist upon following manufacturer’s restrictions, which are presumably based on actual risks. That said, the answer could well be different if the manufacturer’s restrictions are not based on actual risks, but rather are based upon speculation, stereotypes, or generalizations about individuals with disabilities.

9. With respect to the manufacturer’s restrictions, if the plaintiff believed that the restrictions are overprotective, the court said that the plaintiffs were free to initiate an action against a manufacturer.

10. The court said that the restrictions themselves are such that a person in a wheelchair may still satisfy the requirement for riding the roller coaster at issue. In particular, someone who is confined to a wheelchair may indeed have a functioning arm or hand or even more. They also may have legs. As an aside, it is unclear from the case as to whether the leg requirement means that the legs has to be functional (the court seem to believe that the leg does not have to be functional, otherwise just about all persons in wheelchairs would be excluded from the ride.

Takeaways:

Does this case mean that amusement parks have carte blanche to have their rides do whatever they need to do regardless of whether the ride is accessible to persons with disabilities? The answer is complicated because:

1. The court did not cite to the second sentence of the federal regulation, which says that safety requirements must be based upon actual risks. Therefore, it is an open question as to what actual risks means. Also, is that standard the same as the Chevron standard or is it something else?

2. This case was styled as a failure to design a ride problem, rather than a full and equal enjoyment issue. To my mind, the full and equal enjoyment issue could well change the direction of the case completely.

3. The effect of the court’s decision is to shift the burden of ADA compliance with respect to the rides from the amusement park to the manufacturer of the rides themselves. That raises the issue of whether the court is in essence delegating a non-delegable duty.